Dasharath Bhanvarlal Rajput vs State of Gujarat

K.S. Jhaveri, J.—In these two appeals appellants-original accused persons in N.D.P.S. Case No. 8 of 2000 were found guilty for having committed offences punishable under Sections 18 and 29 of the Narcotic Drugs and Psychotropic Substances Act (''N.D.P.S.'' Act) and sentenced to Rigorous Imprisonment for 9 years and to pay fine of Rs. 90,000/- and in default to undergo Simple Imprisonment for 2 years by the impugned judgment and order dated 07.02.2004 passed by the learned Special Judge, Fast Track Court No. 4, Vadodara which is directly challenge before us in this appeal.

In order to appreciate the merits of this appeal and challenge against it a few material and relevant facts may be articulated at this juncture. According to the prosecution case, P.S.I I.M. Rathwa and other staff members were on patrolling as per the instruction of P.S.I in the area of Padra Town. During the course of time prohibition Constable Abdul Kadar Sabarali received a secret information that the accused persons were sitting with opium on their cycle nearby Shiv Petrol Pump which is on National Highway No. 8. This information was given to P.I of Vadodara Prohibition Police Station who was in additional charge of Padra Prohibition Police Station. On receipt of information two panchas were called and apprised of them of the information. On a search being conducted at the place no prohibition muddamal was found. Upon further search, they found opium from the tyre tube of the bicycle of the accused persons. On weighing it was found to be 2100 gm worth Rs. 12000/- per 1 kg totalling to Rs. 25000/-. Out of that 10 gms of opium was taken as sample and it was properly sealed and put the slip signed by panchas and police as described in the panchnama. Rest of the muddamal was kept in the plastic bag itself and slip signed by the panchas and police personnel was put on it. On inquiring from the accused it was found that the said opium has been brought from their native. Thereafter accused were arrested and seizure memo was prepared. Thereafter, complaint was prepared and accused along with the complaint, panchnama and muddamal were sent to Police Station for registering the offence where it was registered under the provisions of N.D.P.S Act and accused were sent to judicial authority.

2.2 Necessary investigation was carried out and statement of witnesses were recorded. Ultimately, chargesheet was filed against the respondents before the court of learned Special Judge, Vadodara on 29.09.2000.

2.3 Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Court of learned Additional Sessions Judge u/s 209 of Cr.P.C. The case was numbered as and same was numbered at N.D.P.S. Case No. 8 of 2000. The trial was initiated against the respondents.

2.4 To prove the guilt against the accused the prosecution has examined the following witnesses:

P.W.1 Shabbir Fakir Mohammad Shaikh - Exh. 20

P.W.2 Hiralal Ramchnad Sharma - Exh. 28

P.W.3 Naushadali Inayatali - Exh. 30

P.W.4 Abdulkadar Sabirlai - Exh.31

P.W. 5 Sureshbhai Jethabhai Chauhan - Exh. 32

P.W.6 Ishwarbhai Motibhai Rathwa - Exh.34

P.W.7 Mafatgiri Dhulagiri - Exh. 35

P.W.8 Narendrabhai Chhitabhai Patel - Exh.38

P.W. 9 Mahendrasinh Sardarsinh Chauhan - Exh. 43

P.W.10 Manibhai Shamalbhai Patel - Exh. 48

2.5 In order to support the case, the prosecution has produced the following documents:

[1] Panchnama of Raid - Exh. 21

[2] Receipt of recovery of muddamal - Exh. 22

[3] Seizure Memo - Exh.23

[4] Purchase bill of cycle - Exh.29

[5] Complaint - Exh.34

[6] Receipt regarding sending of Muddamal at F.S.L., Surat - Exh. 36

[7] Panchnama of identification of accused Kashmersingh Phagansinh Jhat-Exh.39

[8] A note of Station Diary No. 2 - Exh. 44

[9] A note of Station Diary No. 9 - Exh. 46

[10] A certified copy of the information regarding arrest of the accused - Exh. 49

[11] Forwarding letter of F.S.L., Surat - Exh. 50

[12] Investigation Report of F.S.L., Surat - Exh. 51

[13] Letter for investigation after registering crime - Exh. 52

[14] A certified copy of the information send to higher authority regarding N.D.P.S. Act - Exh. 53

[15] A certified copy of the information sent to Prohibition and Excise Department, Surat - Exh. 54

[16] A certified copy of the sending note - Exh. 55

2.6 At the end of trial, after recording the statement of the accused u/s 313 of Cr.P.C and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted the accused of the charges levelled against them by judgment and order dated 07.02.2004.

2.7 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court above-mentioned appeals were preferred by both the accused.

3.0 When the appeal has come up for hearing, Mr. U.S. Brahmbhatt,who has been appointed as the Counsel to appear on behalf of the appellants has stated at the bar that he would restrict his arguments only on the point of sentence.

3.1 It is argued by the learned advocate for the appellants that the present appellants were facing the offence u/s 18 of the N.D.P.S Act. The amended Act came into force with effect from 02.10.2001 while the incident in question has taken place 30.06.2000, and therefore according to him, the amended Act would be applicable in the present case. According to him even the alternative sentence in default of payment of fine is also disproportionate, harsh and not according to law.

4.0 Learned A.P.P for the State has also not disputed the interpretations made and arguments advanced by the learned advocate for the appellants regarding Section 18 and notification specifying small quantity and commercial quantity of the substance. It is contended that even legislature has also given guideline in Schedule No. 92 (Schedule No. 92 of the List of Narcotic Drugs and Psychotropic Substances(hereinafter referred to as ''the List'' for short) as to which will be small quantity and which will be commercial and sentence should be decided accordingly.

5.0 Heard Mr. U.S. Brahmbhatt, learned advocate for the appellants and Mrs. Manisha Lavkumar Shah for the respondent-State.

5.1 We have gone through Section 18 together with Scheduled No. 92 of the List. Section 18 reads as under:

Punishment for contravention in relation to opium poppy and opium- Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports, inter-State, exports inter-State or uses opium shall be punishable,-

(a) where the contravention involves small quantity ,with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both;

(b) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees which may extend to two lakh rupees;

(c) in any other case, with rigorous imprisonment which may extend to ten years and with fine which may extend to one lakh rupees.]

4.0 In the case before us, since the muddamal opium recovered from the appellant weighing 2100 gms is neither a commercial quantity nor contraband quantity, Section 18 has to be kept in mind. This means that proportion of sentence in relation to quantity has to be maintained by the Court. If trial Court failed to maintain the proportion and award sentence we are of the opinion that with regard to quantity recovered from the present appellants i.e. 2100 gms. The trial Court has awarded rigorous imprisonment of 9 years with a fine of Rs. 90,000/- each which appears to be unjust, improper and disproportionate. Besides, the trial Court has not exercised its discretionary power while awarding alternative sentence also. In default of payment of fine, the trial Court has awarded two years rigorous imprisonment. Hence, we are of the opinion that even the fine also is disproportionate which is required to be maintained.

5.0 The intention of legislature is that the sentence and the alternative sentence to be awarded in this type of offence should be linked with the quantity involved. Here the appellants are in judicial custody since 30.06.2000. They have already undergone sentence of 9 years.

6.0 In the premises aforesaid both appeals preferred by the appellants-convict are partly allowed. The judgment and order of conviction and sentence of rigorous imprisonment for 9 years passed by the learned Special Judge, Fast Track Court No. 4, Vadodara is confirmed, but the order of fine is modified to the extent that the accused shall pay fine of Rs. 50,000/- (Rupees Fifty Thousand) each instead of Rs. 90,000/- each and in default of payment of fine, the appellants shall undergo rigorous imprisonment for further period of six months.